Comments on the Memos

From one of the memos:“In addition to using the confinement boxes alone, you also would like to introduce an insect into one of the boxes with Zubaydah. As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar. If you do so, to ensure that you are outside the predicate act requirement, you must inform him that the insects will not have a sting that would produce death or severe pain. If, however, you were to place the insect in the box without informing him that you are doing so, then, in order to not commit a predicate act, you should not affirmatively lead him to believe that any insect is present which has a sting that could produce severe pain or suffering or even cause his death. [Redacted section] so long as you take either of the approaches we have described, the insect’s placement in the box would not constitute a threat of severe physical pain or suffering to a reasonable person in his position. An individual placed in a box, even an individual with a fear of insects, would not reasonably feel threatened with severe physical pain or suffering if a caterpillar was placed in the box. “

Their language is the precise bureaucratese favored by dungeon masters throughout history. They detail how to fashion a collar for slamming a prisoner against a wall, exactly how many days he can be kept without sleep (11), and what, specifically, he should be told before being locked in a box with an insect — all to stop just short of having a jury decide that these acts violate the laws against torture and abusive treatment of prisoners. “

Recall the April 2008 ABC News report that disclosed Condoleezza Rice’s chairing of NSC Principals Committee meetings, in which she was “decisive” in authorizing brutal interrogation techniques, including authorizing waterboarding of three people in U.S. custody, telling the CIA “This is your baby. Go do it.” According to that report, the discussions were so detailed they were “almost choreographed—down to the number of times CIA agents could use a specific tactic.”

One cannot help but imagine that the “choreography” of interrogations, discussed in the reports of the National Security Council’s Principals Committee meetings, which were chaired by Condoleezza Rice, would have been along similar lines as in these memos, and just as barbaric.

Blair essentially invokes the Nuremberg defense — “just following orders” — or the recent variant, “just following orders while relying on get-out-of-jail-free legal opinion” — to argue that interrogator-torturers should not be prosecuted.

But the point of the Nuremberg defense, as we should know, is that it is *not* supposed to be a defense. He misses the entire point that it is the right, indeed duty, of all people, in armed forces or anywhere, to disobey illegal orders. (There is section 1004 of the Detainee Treatment Act, as (lightly) amended by section 8 of the Military Commissions Act, but this is the general principle.) Of course there is also the obvious consideration that those at the top, giving the orders and authorizing any torture, are primarily responsible, and hence much more worthy of prosecution than those performing their orders on the ground.

Obama, law professor and scholar, also invokes this Nuremberg defense as if it were legally and morally clear. The final two paragraphs make explicitly opposite statements; this is a clear hedge, and his well-known position. “[N]othing will be gained by spending our time and energy laying blame for the past… That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. “

However, if the first of these two paragraphs means a commitment not to prosecute, it is a nonsensical position. The laws in which Obama expresses his “unshakeable commitment” obligate his administration to investigate and prosecute war crimes that have occurred in his jurisdiction: not because it is a matter of laying blame for the past, but because those who commit grave crimes must be held accountable for their actions, in order to ensure the rule of law, and in order to ensure that such horrors do not happen again.

3. The obligation to investigate, and amnesty

One such law is Article 12 of the Convention Against Torture, to which the US is a party, and as a properly ratified treaty is the supreme law of the land. Article 12 states that a State Party “shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”

Scott Horton discussed Obama’s effectve amnesty (and many other things) on Democracy Now (discussed earlier on some of these email lists):Obama Releases Bush-Era Memos Authorizing Torture Techniques, Rules Out Prosecuting CIA Interrogators who Carried Them Outhttp://www.democracynow.org/2009/4/17/memos“The surprising thing was, of course, the statement that was released alongside of it that there would be no prosecution of CIA agents who relied on these memos in performing their duties. And I’d say that that outcome—most people who’ve studied this don’t expect that there ever would be such prosecution, certainly not of ground-level people at either the CIA or the

Department of Defense. But there’s some very serious issues about how this is raised, in particular because this amnesty—and that’s effectively what it is—is being granted before an investigation of all the facts has been completed. And I think, in terms of proper process, it would be appropriate to lay down the facts to establish them and then make some sort of decision about amnesty. “

Michael Ratner, from the same NY Times Blog above, on legal advice as get-out-of-jail free card:“Torture is torture and all the legal window dressing in the world cannot hide its essence: the infliction of pain and suffering on human beings. If legal advice can protect torturers, no official anywhere can ever be prosecuted. Legal advice then becomes a get out-of-jail free card and will be employed by every petty dictatorship to protect its abusers.

In making the decision not to prosecute, President Obama is acting as jury, judge and prosecutor. It is not his decision to make. Whether or not to prosecute law breakers is not a political decision. Laws were broken and crimes were committed. If we are truly a nation of laws as he is fond of saying, a prosecutor needs to be appointed and the decisions regarding the guilt of those involved in the torture program should be decided in a court of law. “

Is Obama flouting the law by not proceeding to a prompt and impartial investigation of Yoo, Bybee, Bush, Cheney, Rumsfeld, and others… including, of course, Condoleezza Rice?

4. Depths of barbarity

“You asked me once, what was in Room 101. I told you that you knew the answer already. Everyone knows it. The thing that is in Room 101 is the worst thing in the world.”— O’Brien, in George Orwell, 1984

“There is nothing abstract about the techniques: they are initially focused on one individual and even discuss his psychological weakness in language similar to the novel 1984 — although in this case, it’s bugs, not rats.”

Scott Horton on the barbarity and the use of healthcare professionals:“Well, we’re seeing the realization of two famous pieces of literature, aren’t we? George Orwell’s 1984 with the rat—remember, the rat was selected after psychoanalysis of the subject revealed that he had a fear of rats, so this was being used to terrorize, quite literally, the individual—as well as Terry Gilliam’s filming of Brazil, where we know again study of fear was used to drive, to craft special techniques. … [The memos suggests] that with respect to this prisoner, the diagnosis of psychiatrists and psychologists who had studied his case was that he had an irrational fear of insects. So let’s use this fear to unhinge him.

So, the other thing I think we should note, going back here, is this shows the central role played by healthcare professionals in the crafting and implementation of this entire process. It’s clear from reading these memoranda that doctors and psychologists are present at every stage along the way, supervising what’s going on, but also suggesting and refining the techniques to make them more terrible. “

And some more from the NY Times editorial:“These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.

It sounds like the plot of a mob film, except the lawyers asking how much their clients can get away with are from the C.I.A. and the lawyers coaching them on how to commit the abuses are from the Justice Department. And it all played out with the blessing of the defense secretary, the attorney general, the intelligence director and, most likely, President Bush and Vice President Dick Cheney. …

These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it. “

Is there any reason why Condoleezza Rice should not be added to that list, as chair of the Principals Committee of the National Security Council — their discussions and decisions, so far as we know, right out of the plot of the same mob film? There is one significant difference: the Principals Committee were not just lawyers — they were actual decision-makers, with all the legal responsibility that entails.

5. Hoover fellows to the rescue

They are out in force! (A concerted effort?)

On the aforementioned NY Times Blog we have Kori Schake making an argument against prosecution, which she is perfectly entitled to do, except it’s relevant to us because of her Hoover position. She informs us that applying the rule of law in a democracy is now called “politicization”.

Still at the same blog, Kenneth Anderson, also from Hoover, rightly points out that “Congress Knew All Along”, including senior Democrats. Unfortunately, he also seems to regard the Nuremberg-plus-get-out-of-jail-free-card defense as “obvious”, rather than obviously not a defense, given that Democrats were complicit. It is not at all clear why war crimes become non-prosecutable when the opposition party proves to be (or perhaps, was well known to be) spineless and fails to take a stand against them. Does one decide not to prosecute a Nazi officer because the SPD failed to prevent, or even knew about, or even sympathized with Nazi atrocities? But this argument, ridiculous in principle, is made in such a dismissive fashion that one is not sure whether he actually means it as a matter of principle, or as a matter of prosecutorial discretion.

Such arguments by those we are supposed to look up to on campus speak for themselves. All the more so, when there are faculty on campus against whom there is a prima facie case of war crimes.

One should also note that, in the case of Rice, there is also a prima facie case of participation in the much worse crime of aggressive war, the supreme crime against international law, the same crime for which the Nazis were hanged at Nuremberg. The evidence is overwhelming that she was a principal participant in the planning and propaganda efforts of the war on Iraq, a monstrous crime leading to hundreds of thousands of deaths — by some estimates, well over a million.